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FightBack Forums _ Private Parking Tickets & Clamping _ Gatwick North Terminal - Euro Car Parks

Posted by: Alexander86 Mon, 23 Jul 2018 - 23:21
Post #1401733

Dear all,

I am after some help on this topic and seeking for your advise. I have read the post of cabbyman where a similar topic has been discussed and successfuly closed.

As the registered keeper of the car, I have received today 23/07/18 a PCN (issued on the 20/07/18) in regard to the “event” dated as 15/07/18.
According to the pictures showing the registration plate on the letter, the driver enter Shell Petrol Station at 02:18 a.m, leaving at 03:08, exceeding the maximum period allowed.

If I am not mistaken, the procedure for the registered keeper is to make an Appeal, that will be surely rejected, and then direct the appeal to POPLA.

Your help will be much appreciated,
Kind regards,

Posted by: Sheffield Dave Tue, 24 Jul 2018 - 06:31
Post #1401747

Edit your post so that the identity of the driver isn't hinted at. Refer to the driver only as "the driver".
What is the maximum allowed parking period?

Posted by: ostell Tue, 24 Jul 2018 - 06:47
Post #1401748

Do that edit as suggested

Post up the PCN would help so that others can see what is on the notice. Personal details redacted.

Posted by: cabbyman Tue, 24 Jul 2018 - 13:32
Post #1401873

If you read my thread very carefully, you will see that at no time was the driver identified. Your thread needs to maintain the same discipline. EDIT as previously suggested.

My ticket, IIRC, was from 2016. It's possible that signs and PCN could have changed in that time. ONLY use mine as a guide to your own case. Post pics of signs and PCN, suitably redacted, for us to look at.

Posted by: Alexander86 Tue, 24 Jul 2018 - 18:59
Post #1402003

Dear all,

Thank you very much for your feedback.

The max allowed time is 20 minutes.

Please see below PCN photos and signage around the petrol station.

Looking at the pictures now, I must say that there are plenty of these but the driver didn’t see any as this was new to him. It was 2 a.m in the morning,
there where many cars parked there and the driver thought there wouldn’t be any problem to stick around whilst washing the car and having some snacks.
As additional information, the driver spent easily 10-15 mimutes washing the car having selected the shortest program on the machine.
This makes almost impossible to do the job in 20 minutes without considering that you need to pay first at the till.






Thank you in advance,
Kind regards,

Posted by: cabbyman Tue, 24 Jul 2018 - 19:06
Post #1402005

STOP IDENTIFYING THE DRIVER. GO BACK AND EDIT ALL YOUR POSTS TO THAT EFFECT.

Posted by: Sheffield Dave Tue, 24 Jul 2018 - 19:31
Post #1402010

Anywhere where you write about what the driver did or saw on the day, avoid phrases like "I/we/my wife/my son did X"; replace any such occurrences with "the driver did X". It's okay to identify yourself as the registered keeper, e.g. "on Monday I received a Notice to Keeper"

Posted by: Macapaca Tue, 24 Jul 2018 - 19:33
Post #1402011

Euro Car Parks don't do court so sit back and relax. They have issued 108,000 tickets so far in 2018 with ZERO court cases! They have only had three in the last three years!

Posted by: Alexander86 Tue, 24 Jul 2018 - 20:58
Post #1402038

QUOTE (cabbyman @ Tue, 24 Jul 2018 - 20:06) *
STOP IDENTIFYING THE DRIVER. GO BACK AND EDIT ALL YOUR POSTS TO THAT EFFECT.


Do you mean to edit all my posts in this forum?
Can EURO CAR PARKS use this content published here as a proof of me being the driver???

I am not planning to make my appeal explaining what I saw or I did, since they could not care less...

I will post here my appeal tomorrow so you can comment on it before sending it.

Thanks for you help,
Regards,

Posted by: Jlc Tue, 24 Jul 2018 - 21:06
Post #1402043

Yes, forum posts do appear in court.

(However unlikely here)

Posted by: Sheffield Dave Tue, 24 Jul 2018 - 21:59
Post #1402059

Even if ECP don't currently do court, they have up to 6 years to change their mind. So no leaving clues around for them to wave in court years later.

Posted by: ostell Tue, 24 Jul 2018 - 22:21
Post #1402067

QUOTE (Alexander86 @ Tue, 24 Jul 2018 - 21:58) *
QUOTE (cabbyman @ Tue, 24 Jul 2018 - 20:06) *
STOP IDENTIFYING THE DRIVER. GO BACK AND EDIT ALL YOUR POSTS TO THAT EFFECT.


Do you mean to edit all my posts in this forum?
Can EURO CAR PARKS use this content published here as a proof of me being the driver???

I am not planning to make my appeal explaining what I saw or I did, since they could not care less...

I will post here my appeal tomorrow so you can comment on it before sending it.

Thanks for you help,
Regards,


You asked for help, part of the help is remove statements that could infer who could be driving. Plain and simple choice. do as people suggest and ask and probably win or ignore and argue that you know best and most likely lose.

Posted by: nosferatu1001 Wed, 25 Jul 2018 - 07:42
Post #1402112

You came here asking for advice
The very plain simple advice was given, same as on every thread, yet with no research or knowledge in this matter, you know best. Youve done no research in other threads to see WHY this advice is given, nor seen where lawyers HAVE submitted forum posts into evidence, yet you know best.

Cant you see how that would be a trifle annoying?

Posted by: Alexander86 Wed, 25 Jul 2018 - 11:50
Post #1402235

All,

All post edited as suggested.
Apologies for the misunderstanding. I would have never imagine that the information here could be used in court.

Kind Regards,


Posted by: nosferatu1001 Wed, 25 Jul 2018 - 12:48
Post #1402262

Why not?
Its publicv info in a civil court

Posted by: Alexander86 Fri, 27 Jul 2018 - 14:16
Post #1402984

Dear all,

Please see below my appeal to ECP.
It is literally a mix and match of the existing posts on this forum. I've just added the fact that the car was not "literally" parked (as the PCN says) but waiting to fill up the tank, putting air on the tyres or using any of the other facilities provided by the station.

What do you think?

Any feedback will be greatly appreciated,

Regards,

Dear Sirs,

Parking Charge Notice xxxxxxxxx:
Vehicle Registration xxxxxx

I refer to the above-detailed Parking Charge Notice (“PCN”) issued to me by Euro Car Parks Ltd (“ECP”) as a Notice to Keeper. I confirm that I am the keeper of this vehicle for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) and I write to formally dispute the validity of this PCN.

You will no doubt be familiar with the strict requirements of Schedule 4 of POFA to be followed in order for a parking operator to be able to claim unpaid parking charges from a vehicle’s keeper. However, there are a number of reasons why ECP’s Notice to Keeper did not comply with POFA; in order that you may understand why, I suggest that you carefully study the details of Schedule 4, Paragraph 9 in particular.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

There will be no admissions as to who was driving and no assumptions can be drawn. In addition, I dispute your Parking charge notice since there is no evidence of the car being literally parked in your premises, since the driver could have been using the facilities in the station. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

ECP has now forfeited its right to claim keeper liability and such further pursuance is liable to cause unwarranted and substantial damage and distress to the registered keeper. . Therefore please confirm that you shall now cancel this charge and that my details have been removed from your system as you no longer have any need to hold them. This instruction constitutes a notice of objection to processing under section 10 of the Data Processing Act 1998.

Sincerely,

Posted by: Redivi Fri, 27 Jul 2018 - 14:39
Post #1402991

Dear Sirs,

Parking Charge Notice xxxxxxxxx:
Vehicle Registration xxxxxx

I refer to the above-detailed Parking Charge Notice (“PCN”) issued to me by Euro Car Parks Ltd (“ECP”) as a Notice to Keeper. I confirm that I am the keeper of this vehicle for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) and I write to formally dispute the validity of this PCN.

You will no doubt be familiar with the strict requirements of Schedule 4 of POFA to be followed in order for a parking operator to be able to claim unpaid parking charges from a vehicle’s keeper. However, there are a number of reasons why ECP’s Notice to Keeper did not comply with POFA; in order that you may understand why, I suggest that you carefully study the details of Schedule 4, Paragraph 9 in particular.

I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers.

There will be no admissions as to who was driving and no assumptions can be drawn. In addition, I dispute your Parking charge notice since there is no evidence of the car being literally parked in your premises, since the driver could have been using the facilities in the station. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.

Sincerely

Posted by: Alexander86 Fri, 27 Jul 2018 - 16:47
Post #1403022

Thank you Redivi,
I will make the appeal as you suggest.
Kind regards,

Posted by: Alexander86 Wed, 8 Aug 2018 - 22:40
Post #1406456

Dear all,

I have received a response to my appeal to ECP (please see below), which has been rejected.
I have been provided with a POPLA verification code so I am now in a position to make my second appeal.

Can I use the content of the appeal sent by Cabbyman as per the link below?
http://forums.pepipoo.com/index.php?s=&showtopic=107154&view=findpost&p=1214223

Given the circumstances of both cases, I would think the same terms would be applicable.

Value your thoughts,

Thank you in advance,
Kind regards,

Ref: xxxxxxxxxxx

Date: 08/08/2018
Our Ref: XXXXXXXXXXX
Unique POPLA Verification Code: XXXXXXXXXXX

Dear Mr X
Thank you for your letter of appeal. The details of the Parking Charge Notice are as follows:

Parking Charge Notice Number: xxxxxxxxxxx

Date of Issue: 15/07/2018
Vehicle Registration Mark: XXXX XXX

Time of Issue: 03:08:16
Car Park: Shell Petrol Station - Gatwick North
Breach of Terms and Conditions:
Your vehicle was parked longer than the maximum period allowed

Having carefully considered the evidence provided by you we have decided to reject your appeal for the following reasons:
 On entry to private land it is the responsibility of the driver to check for signage and ensure that your vehicle has not breached the terms and conditions on site.
 Shell Petrol Station - Gatwick North is operated by Automatic Number Plate Recognition (ANPR) – cameras capture an image of vehicles entering and leaving the site and calculate their length of stay. Your vehicle exceeded the maximum stay of 20 minutes, therefore the notice was issued correctly and the charge remains payable.
 The site is private property and contract law applies. Euro Car Parks (ECP) offer our client a space management service.
 There is clear entrance signage on site and signs further location within the area – it is the driver’s responsibility to check all signage when entering any area that may have terms and conditions restricted to the area.

Please make payment of the discounted amount of £60.00 by visiting our website at www.eurocarparks.com or use the automated telephone service 0203 553 4559. Alternatively make your cheque payable to Euro Car Parks Limited (to include a £2.50 handling charge for cheque processing) and post to Euro Car Parks Ltd, 30 Dorset Square, London, NW1 6QJ, quoting the PCN number on the reverse of the cheque.This amount is now due and the charge will be held for 14 days to allow time to make the payment. If payment is not received by this time the charge will increase to £100.00 and this may also result in the notice being passed to a third party with further charges applicable.

You have now reached the end of our internal appeals procedure.

You can make an appeal to The Independent Appeals Service (POPLA) within 28 days online at www.popla.co.uk with the following reference number XXXXXXXXX. Alternatively, if you wish to appeal to the Independent Appeals Service by post a copy of the appeal application can be sent at your request. Please be advised that if you opt for independent arbitration of your case the ability to pay the parking charge at the reduced rate will be at an end. If you opt to pay the parking charge notice you will be unable to appeal to POPLA. If you choose to do nothing, we will seek to recover the monies owed to us via debt recovery procedures and may proceed with Court action against you.
By law we are also required to inform you that Ombudsman Services (www.ombudsman- services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.

Yours sincerely
PCN Coordinator
Parking Charge Notice Department

Posted by: Macapaca Thu, 9 Aug 2018 - 07:34
Post #1406480

So that is the inevitable initial appeal rejection out of the way. You will need to beef up your evidence for the POPLA appeal. Your main points seem to be POFA compliance and signage. You will need to be more specific on why these are non-compliant otherwise POPLA will also reject your appeal. Draft your appeal and post it here for review.

Posted by: nosferatu1001 Thu, 9 Aug 2018 - 10:35
Post #1406524

POFA compliance, not POPLA wink.gif

Posted by: cabbyman Thu, 9 Aug 2018 - 19:11
Post #1406748

No reason you can't use my appeal. After all, it did win.

However, a word of warning: You need to go through it with a fine tooth comb and ensure that every word is correct and applicable to your case. For instance, has the signage changed? Have any terms, eg permitted period, changed? Etc., etc.

It is a document that you are using in a quasi-judicial situation and should, therefore, be the truth.

Posted by: Alexander86 Thu, 9 Aug 2018 - 19:43
Post #1406761

Thank you guys,
I will go through and amend where necessary.
Regards,

Posted by: Alexander86 Mon, 13 Aug 2018 - 19:46
Post #1407755

Dear all,

I have used as a reference Cabbyman appeal letter and underline the points I think are not applicable to my appeal.
This is regard to the NtK being served too late, since I think in my case it was served on time, and therefore I should remove the underlined clauses from my appeal letter.

The NtK states the following dates:
Date of event 15.07.2018
Date issued 20.07.2018

The letter was received on the 24.07.2018.

I believe th rest of the points are applicable to my case. Please see below draft letter for my appeal.

Thanks in advance,
Kind regards



As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued by Euro Car Parks Ltd. I would like to have the parking charge notice cancelled based on the following grounds:

1) No keeper liability
2) BPA Code of Practice - non-compliance to guidelines
3) No evidence of period parked
4) No landowner authority
5) Lack of signage- unclear signage
6) The ANPR system is neither reliable nor accurate


1) No keeper Liability - The Notice to Keeper is not compliant with the POFA 2012, was served too late and no 'Notice to Driver' was served whilst the car was stationary.

Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

I set out below the requirements for a 'Notice to Driver' as set out in Schedule 4 which clearly requires either:

- Under paras 7 & 8: a windscreen PCN (in person, issued on the car before it leaves the site) followed by a postal 'Notice to Keeper' served no sooner than 29 days later,

OR

- Under paragraph 9: a compliant postal 'Notice to Keeper' to be served within 14 days of the event.

Neither of these two mandatory routes were followed in this case. Paragraph 7 states:

7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.


(4)The notice must be given—

(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and

(b)while the vehicle is stationary,

by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.


No such Notice to Driver was served. Instead, a hybrid document the operator called a 'PCN' was posted. This neither matched the mandatory requirements of paragraph 7 as a 'Notice to Driver' (because it was posted, not served whilst the vehicle was stationary) nor does it meet the strict requirements of paragraph 9 if it was intended to be a 'Notice to Keeper' (NTK).

Any PCN/NTK must arrive by day 14 after the parking event. The late timing and non-compliant wording of this NTK is fatal for 'keeper liability'.

In terms of wording:

- Contrary to the requirements of Paragraph 9(2)(b), the Notice to Keeper did not inform the keeper that: ''the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full''. BOTH the above prescribed requirements must be stated in the NTK and they were not.

- Contrary to the requirements of Paragraph 9(2)(e), the Notice to Keeper did not state that: ''the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: ... to pay the unpaid parking charges; or ... if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver''

- The NTK fails in the prescribed requirement - in exact words and with the correct deadline - to: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''

- Contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). A date of preparing or batching of NTKs ready for mailing later by iMail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before they actually put the NTK in the post via Royal Mail.

In any case, as explained above, the document described as a 'NTK' arrived too late - as if it was one which followed a windscreen PCN - yet this operator has failed to apply any windscreen Notice to Driver. Consequently, ECP has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If ECP should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or

(b)has given a notice to keeper in accordance with paragraph 9.

The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK and the lack of any windscreen NTD or PCN served whilst the vehicle was stationary. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.

2) BPA Code of Practice - non-compliance to guidelines:
The BPA Code of Practice point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The parking charge notice in question contains two photographs of the vehicle number plate. They do they clearly show the vehicle entering or leaving the car park as required in the BPA Code of practice. The images may have also been cropped and I invite ECP to produce evidence of the original "un-cropped" images showing the vehicle entering and leaving the car park.

3) No evidence of period parked. The NtK clearly states the vehicle was parked during the relevant period. PoFA2012 Sched 4 Para 9 refers at numerous times to the period of parking. By virtue of the nature of a ANPR system recording only entry and exit times, ECP are not able to definitively state the period of parking. Contrary to the mandatory provisions of the BPA code of practice, there is no record to show that the vehicle was parked longer than the time allowed PLUS the mandatory grace periods. These are a minimum of 10 minutes to leave the car park and a similar period to cover the period after the vehicle parks, finds signage, reads the signage and decides whether to accept or reject the terms offered within. An alleged 30 minutes overstay does not meet the binding code of practice. There is no evidence that the vehicle was ‘parked’ for 50 minutes.

4)No landowner Authority:

I question ECP’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put ECP to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question ECP’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that ECP is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that ECP are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''

I put ECP to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 20 minutes in a car park.
I require ECP to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
5) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.

The entrance signage was not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park from the public road and many of the words are in a small font and are not legible or intelligible.



The BPA Code of Practice states that- “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. “

There were no conspicuous signs throughout the site. I put ECP to strict proof on this point. As well as a site map they must show photographs of the signs as the driver would see them on entering the car park bearing in mind that they may be completely unfamiliar with the area, the approach to the car park, the entrance to the car park, or the layout of the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore, as stated, a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

Furthermore the driver has not been identified and I have no obligation to assist an operator in this regard, even if I was certain which of several drivers could have used the car that day. As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that the driver(s) are unambiguously and clearly informed of terms and the parking charge itself:

(3) ''For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...the display of one or more notices which—

(i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.''

In fact, their signs are not visible from a car seat before parking and the words are completely unreadable and incapable of forming a contract before the act of parking (it is trite law that afterwards - after parking in this case - is too late).

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.

In the Beavis case, the Supreme Court Judge concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound.




6) The ANPR system is neither reliable nor accurate.

The ECP evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. To capture a vehicle entering Shell Gatwick car park and actually crossing the boundary into the land in question, it would appear that the only conceivable location for a camera would be directly across the road from the entrance therefore outside the car park and taken from public land.
In any case it is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic. If they in fact offered a pay and display system which the driver can only access after parking, and which is when the actual action and period of parking commences. i.e. when the vehicle is stationary, and when the clock should start from. The exit photo image of the rear number plate cannot be evidence of actual 'parking time' at all, and has not been shown to relate to the same parking event.

Additionally you cannot discount that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website; www.britishparking.co.uk/How-does-ANPR- work

The BPA's view is: 'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require ECP to provide records with the location of the cameras used in this instance, together dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of the vehicle number plate allegedly entering and leaving the car park at specific times (not shown within the photographic images), it is vital that ECP produces evidence in response to these points.

In addition to showing their maintenance records, I require ECP to show evidence to rebut the following assertion. I suggest that in the case of this vehicle being in that car park, a local camera took the image but a remote server added the time stamps. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photo images, I put ECP to strict proof to the contrary.



I respectfully request that this parking charge notice appeal be allowed and await your decision.

Posted by: cabbyman Mon, 13 Aug 2018 - 20:21
Post #1407767

I have removed a lot of your underlinings and replaced with [deleted], where appropriate. A lot of what I have left in is padding to make the appeal so long that increases the chance of them making a fatal error in their rebuttal. Having said that, ECP have never contested this appeal, preferring instead to allow POPLA to award cancellation rather than putting time and effort into rebuttal.

Note the distinction that I am trying to make over Notice to Driver, Notice to Keeper and Parking Charge Notice. This is a deliberate muddying of the waters.

Make sure that I haven't left any howlers in there with regards to service of notice on time.

QUOTE (Alexander86 @ Mon, 13 Aug 2018 - 20:46) *


As the registered keeper of the above vehicle, I wish to appeal the parking charge notice issued by Euro Car Parks Ltd. I would like to have the parking charge notice cancelled based on the following grounds:

1) No keeper liability
2) BPA Code of Practice - non-compliance to guidelines
3) No evidence of period parked
4) No landowner authority
5) Lack of signage- unclear signage
6) The ANPR system is neither reliable nor accurate


1) No keeper Liability - The Notice to Keeper is not compliant with the POFA 2012, [deleted] no 'Notice to Driver' was served whilst the car was stationary.

Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

I set out below the requirements for a 'Notice to Driver' as set out in Schedule 4 which clearly requires either:

- Under paras 7 & 8: a windscreen PCN (in person, issued on the car before it leaves the site) followed by a postal 'Notice to Keeper' served no sooner than 29 days later,

OR

- Under paragraph 9: a compliant postal 'Notice to Keeper' to be served within 14 days of the event.

Neither of these two mandatory routes were followed in this case. Paragraph 7 states:

7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.

(4)The notice must be given—

(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and

(b)while the vehicle is stationary,

by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.


No such Notice to Driver was served. Instead, a hybrid document the operator called a 'PCN' was posted. This neither matched the mandatory requirements of paragraph 7 as a 'Notice to Driver' (because it was posted, not served whilst the vehicle was stationary) nor does it meet the strict requirements of paragraph 9 if it was intended to be a 'Notice to Keeper' (NTK).

[deleted] The non-compliant wording of this NTK is fatal for 'keeper liability'.

In terms of wording:

- Contrary to the requirements of Paragraph 9(2)(b), the Notice to Keeper did not inform the keeper that: ''the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full''. BOTH the above prescribed requirements must be stated in the NTK and they were not.

- Contrary to the requirements of Paragraph 9(2)(e), the Notice to Keeper did not state that: ''the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: ... to pay the unpaid parking charges; or ... if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver''

- The NTK fails in the prescribed requirement - in exact words and with the correct deadline - to: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''

- Contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). A date of preparing or batching of NTKs ready for mailing later by iMail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before they actually put the NTK in the post via Royal Mail.

[deleted] Consequently, ECP has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If ECP should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or

(b)has given a notice to keeper in accordance with paragraph 9.

The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK and the lack of any windscreen NTD or PCN served whilst the vehicle was stationary. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.

2) BPA Code of Practice - non-compliance to guidelines:
The BPA Code of Practice point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The parking charge notice in question contains two photographs of the vehicle number plate. They do they clearly show the vehicle entering or leaving the car park as required in the BPA Code of practice. The images may have also been cropped and I invite ECP to produce evidence of the original "un-cropped" images showing the vehicle entering and leaving the car park.

3) No evidence of period parked. The NtK clearly states the vehicle was parked during the relevant period. PoFA2012 Sched 4 Para 9 refers at numerous times to the period of parking. By virtue of the nature of a ANPR system recording only entry and exit times, ECP are not able to definitively state the period of parking. Contrary to the mandatory provisions of the BPA code of practice, there is no record to show that the vehicle was parked longer than the time allowed PLUS the mandatory grace periods. These are a minimum of 10 minutes to leave the car park and a similar period to cover the period after the vehicle parks, finds signage, reads the signage and decides whether to accept or reject the terms offered within. An alleged 30 minutes overstay does not meet the binding code of practice. There is no evidence that the vehicle was ‘parked’ for 50 minutes.

4)No landowner Authority:

I question ECP’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put ECP to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question ECP’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that ECP is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that ECP are certainly not empowered by the landowner to sue customers and visitors in a free of charge car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''

I put ECP to strict proof of compliance with all of the above requirements.

This is vital; I contend that the contract - if this operator produces one - does not reflect the signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).

This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 20 minutes in a car park.
I require ECP to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.
5) Lack of signage - unclear signage – no contract with driver - no adequate notice of the charge, maximum stay nor grace period.

The entrance signage was not suitably placed to be read from a distance for a driver in an approaching car whilst manoeuvring into the car park from the public road and many of the words are in a small font and are not legible or intelligible.



The BPA Code of Practice states that- “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. “

There were no conspicuous signs throughout the site. I put ECP to strict proof on this point. As well as a site map they must show photographs of the signs as the driver would see them on entering the car park bearing in mind that they may be completely unfamiliar with the area, the approach to the car park, the entrance to the car park, or the layout of the car park. A Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. If the driver did not notice any signs; there was no consideration/acceptance and no contract agreed between the parties. Furthermore, as stated, a suitable grace period must be allowed for the driver to find a suitable parking space, find the signs containing the parking terms, (should they be easily located), decide whether to accept these terms and leave the car park in a safe manner.

Furthermore the driver has not been identified and I have no obligation to assist an operator in this regard, even if I was certain which of several drivers could have used the car that day. As liability for this charge depends entirely upon this operator fulfilling all requirements of Schedule 4, it is mandatory that the driver(s) are unambiguously and clearly informed of terms and the parking charge itself:

(3) ''For the purposes of sub-paragraph (2) “adequate notice” means notice given by — (b)...the display of one or more notices which—

(i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.''

In fact, their signs are not visible from a car seat before parking and the words are completely unreadable and incapable of forming a contract before the act of parking (it is trite law that afterwards - after parking in this case - is too late).

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver.

In the Beavis case, the Supreme Court Judge concluded that signs must be in 'large lettering and prominent' and very clear as to the terms by which a driver will later be bound.




6) The ANPR system is neither reliable nor accurate.

The ECP evidence shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. To capture a vehicle entering Shell Gatwick car park and actually crossing the boundary into the land in question, it would appear that the only conceivable location for a camera would be directly across the road from the entrance therefore outside the car park and taken from public land.
In any case it is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic. If they in fact offered a pay and display system which the driver can only access after parking, and which is when the actual action and period of parking commences. i.e. when the vehicle is stationary, and when the clock should start from. The exit photo image of the rear number plate cannot be evidence of actual 'parking time' at all, and has not been shown to relate to the same parking event.

Additionally you cannot discount that the driver may have driven in and out on two separate occasions both within the allowable grace period. The BPA even mention this as an inherent problem with ANPR on their website; www.britishparking.co.uk/How-does-ANPR- work

The BPA's view is: 'As with all new technology, there are issues associated with its use. Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Additionally under paragraph 21.3 of the BPA Code of Practice, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I require ECP to provide records with the location of the cameras used in this instance, together dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images. As the parking charge is founded entirely on 2 photos of the vehicle number plate allegedly entering and leaving the car park at specific times (not shown within the photographic images), it is vital that ECP produces evidence in response to these points.

In addition to showing their maintenance records, I require ECP to show evidence to rebut the following assertion. I suggest that in the case of this vehicle being in that car park, a local camera took the image but a remote server added the time stamps. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The Operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence, without a synchronised time stamp, there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR evidence from the cameras in this car park is just as unreliable and unsynchronised as the evidence put forward in the recent case of ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge deemed the evidence from ParkingEye to be fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. As its whole charge rests upon two timed photo images, I put ECP to strict proof to the contrary.



I respectfully request that this parking charge notice appeal be allowed and await your decision.


Posted by: Alexander86 Thu, 13 Sep 2018 - 17:35
Post #1416344

Dear All,

Surprisingly, ECP has presented evidences to challenge my POPLA appeal.

I need to provide my comments within the next 7 days and not sure if have left any grounds to success on this appeal.

The only thing I could spot is that the failed to present evidences of my car being parked for 50 min within the premises, since the ANPR photo provided do not correspond with my car at the time of entering.

Hope you can help,
Thank you in advance,

ECP EVIDENCE RE POPLA CASE NUMBER XXXXXXXX
MR DRIVER vs Euro Car Parks Ltd
PCN Number - XXXXXXXXXX
VRM – XXXXXX
Date – 15/07/2018
Time – 03:08
Site – Shell Petrol Station - Gatwick North

Breach of Terms and Conditions – Your vehicle was parked longer than the maximum period allowed
Please find enclosed the evidence pack:

1. (B) Case Summary and Rules/Conditions
2. © Copy of Parking Charge Notice XXXXXXXXXX Date – 15/07/2018 Time – 03:08 –
3. (D) Registered Keeper Details and Liability Trail
4. (E i) Origional representation received from MR DRIVER
5. (E ii) ECP Notice of Rejection
6. (G) ECP response to the POPLA appeal logged by DRIVER
7. (F) Signage Location Plan and images of Site

1. Case Summary and Rule/Conditions

This location is managed by Automatic Number Plate Recognition (ANPR) technology which takes a picture of the vehicle entering and exiting the site, these pictures are timed and therefore the duration of the stay can be calculated. All vehicle registration numbers are then matched against the data produced by the various means of paying for parking and a list of registration numbers where no payment has been made or where the motorist has stayed longer than the period paid is produced. After requesting vehicle keeper details from the DVLA, a Notice to keeper is sent to the keepers of the vehicles on this list. As a consequence at ANPR locations there will be no PCN issued to the windscreen neither will there be photographic evidence of the windscreen supplied in operator evidence packs.

Parking Charge Notice (PCN) XXXXXXXXXX was issued to vehicle XXXXX for Breach of Terms and Conditions A: Your vehicle was parked longer than the maximum period allowed. The Shell Petrol Station - Gatwick North operates an ANPR with 20 minutes maximum stay site. An image is taken of each vehicle on entrance and exit to the Site.

An original representation was received by MR DRIVER on the 27/07/2018 stating the following:
 The Notice to Keeper is not compliant with the POFA
 Signage is not clear
 Declined to name the driver

Euro Car Parks then responded to MR DRIVER’s appeal stating that on entry to private land it is the responsibility of the driver to check for signage and ensure that your vehicle has not breached the terms and conditions on site.

On entry to private land it is the responsibility of the driver to check for signage and ensure that your vehicle has not breached the terms and conditions on site.

Shell Petrol Station - Gatwick North is operated by Automatic Number Plate Recognition (ANPR) – cameras capture an image of vehicles entering and leaving the site and calculate their length of stay. Your vehicle exceeded the maximum stay of 20 minutes, therefore the notice was issued correctly and the charge remains payable.

The site is private property and contract law applies. Euro Car Parks (ECP) offer our client a space management service.

There is clear entrance signage on site and signs further location within the area – it is the driver’s responsibility to check all signage when entering any area that may have terms and conditions restricted to the area.

The vehicle entered the car park at 02:18 and exited at 03:08 – a total duration of 50 minutes.

2. Copy of Notice to Keeper (NTK) sent to the registered keepers address (FRONT & BACK)

This is just a copy of the NtK sent by ECP ti my address. Already posted at the begining of this post.

3. Registered Keeper details and Liability Trail

Parking Charge Notice (PCN) XXXXXXXXX was issued on the 15/07/2018. As the site is camera controlled the vehicle details were forwarded to the DVLA to obtain the registered keepers details. The DVLA had provided the following details as the registered keeper;

Mr DRIVER
DRIVER ADDRESS

MR DRIVER then appealed the PCN and declined to provide the driver on the day in question.

The parking charge notice (section 2) clearly advises the registered keeper/ hirer to provide the name and serviceable address of the driver within 28 days of the date on the parking charge notice.

Therefore the liability remains with MR DRIVER, the registered keeper of the vehicle.

Our PCN (Parking Charge Notice) is the first communication with the registered keeper – this is referred to as the Notice to Keeper or Notice to Owner

The PCN (NTK/NTO) has been checked by both the BPA and the IPC and we have confirmation that our PCN (NTK/NTO) and has been approved as compliant with POFA
The PCN (NTK/NTO) has been checked by Gladstone Solicitors who specialise in assisting private car park operators – legal advice and pre legal advice with regards signage and adhering to POFA and both code of practice
Please be advised once the registered keeper has been sent the PCN (NTK/NTO) if there is no response, payment, appeal, serviceable address of the driver – ECP process a Notice To Keeper – this is a “reminder letter” and sent in reference to the PCN (NTK/NTO) that has not been responded to.


If we are in receipt of a serviceable address of the driver – the PCN (NTK/NTO) is re-issued
If the registered keeper is in receipt of the PCN (NTK/NTO) and has passed to the driver and the driver appeals – we will respond to the appeal strictly following the code and ensure any/all communication is sent to the driver (we would not at this stage re-issue the PCN)
We have been advised that the above is standard practice for all private car park operators in regards to PCN (NTK/NTO) issued on Automatic Number Plate Recognition car parks

4. Original representation sent by MR DRIVER

This is the first appeal to ECP car parks. A copy has been also posted in this thread.

5. ECP notice of rejection to MR DRIVER appeal

This is the notice of rejection sent to me, with the POPLA reference.

6. ECP response to POPLA appeal logged by Mr DRIVER

This location is managed by Automatic Number Plate Recognition (ANPR) technology which
takes a picture of the vehicle entering and exiting the site, these pictures are timed and therefore
the duration of the stay can be calculated. All vehicle registration numbers are then matched
against the data produced by the various means of paying for parking and a list of registration
numbers where no payment has been made or where the motorist has stayed longer than the
period paid is produced. After requesting vehicle keeper details from the DVLA, a Notice to
keeper is sent to the keepers of the vehicles on this list. As a consequence at ANPR locations
there will be no PCN issued to the windscreen neither will there be photographic evidence of
the windscreen supplied in operator evidence packs.


Parking Charge Notice XXXXXXX was issued to vehicle XXXXX on the 15/07/2018. Shell Petrol
Station offers a 20 minute maximum stay time for customers only and therefore is for the sole use of
permit holders and authorised vehicles.

In Mr DRIVER’s appeal to POPLA he stated the following:
 No keeper liability
 BPA Code of Practice - non-compliance to guidelines
 No evidence of period parked
 No landowner authority
 Lack of signage- unclear signage
 The ANPR system is neither reliable nor accurate

Euro Car Parks would like to respond to the points raised in the appeal with the following;

 Section 18.3 of the British Parking Association’s (BPA) code of practice explains that signs
“must be conspicuous and legible and written in intelligible language, so that they are easy to
see, read and understand.

 Signage on site is clear, when parking on private land it is the driver’s responsibility to read the
signage displayed and parked accordance with the terms and conditions as stated.

 Euro Car Parks have provided photographic evidence showing that the appellant
remained at the site for 50 minutes – which are dated and timed (Figure 1)

 Euro Car Parks can confirm that the signage on site clearly dispalys the maximum stay
at Shell Petrol Station (Figure 2)

 Euro car parks can confirm the signage on site is clear (see section 7)

 Please see Figure 3 where I can confirm that ECP PCN’s are POFA compliant

 Figure 4 shows the authority agreement by Shell Petroleum LTD. As an operator ECP
does not need to provide a full contract due to this containing commercially sensitive
information.

 Any form of parking ticket or ‘notice’ is issued under the law ‘of trespass and Contract Law’. A
driver who is invited (or chooses) to park on private land and use the car parking facilities and
pays a fee/s does so under a contract (signage) with the car park operator. The parking contract
sets out the terms that apply to the parking service, including the price.

 The contract (signage) clearly states the extra charges are that the driver will incur and have to
pay if they decide to break the contract terms − for example, by parking longer than the time
paid for or exceeding the maximum time limit applicable.

 According to BPA Code of Practise 13.4 – car park operators should allow the driver a
reasonable period to leave the private car park after the parking contract has ended; before
enforcement action is taken. If the location is one where parking is normally permitted; the grace
period at the end of the parking period should be a minimum of 10 minutes.

 With regards to the reference to “Pre-Estimate of Loss/breach of consumer contracts
1999.” Please be advised that the Supreme Court has made judgement (04/11/15) that clearly
sets out the issue of parking charge notices on private land (law of contract applies) and in
particular pre-estimate of loss. The parking charge notice is enforceable on the basis that it
protected a legitimate interest when the driver failed to adhere to the terms and conditions and
was not extravagant, exorbitant nor unconscionable. The parking charge is not anunenforceable penalty and does not breach the Unfair Terms in Consumer Contracts Regulations 1999.

- It’s the driver’s responsibility to check the signage prior to leaving the vehicle on site.
- Contract Law Applies

 We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated terms & conditions and to follow up on any breaches of these that are identified. The parking charge in this instance was established after consideration of the following costs which we incur on each notice issued;
- Wages and salaries including Employers National Insurance Contributions
- IT systems, software, licences and peripherals
- DVLA fees and processing costs
- Costs in preparing and sending PCNs – Stationary, Postage and Printing
- Legal, Accounting and other Professional Costs
- Human Resources
- Premises Costs
- Vehicle and Telephone Costs
- Loss of Pay and Display Ticket revenue generating from paying customers (where applicable)
- Loss of purchase revenue to Retail Outlets within the car park

 Please be advised the Euro Car Parks do not operate CCTV

 With regards reliability/misreads of the ANPR system at this site and many private and council car parks who use this type of operation. The ANPR cameras are Police NAAS compliant, each individual camera is 93.1% accurate as specified by the supplier, it is well known (to include Police contraventions) that the information will not always be 100% correct, therefore there is always a possibility that there may be an error, however, if an issue is raised, following our complaints procedure a full investigation will be carried out by our Technical Department as quickly as possible with full information being supplied. Our Technical Teams visit the site/s regularly and monitor camera alignment and all on site equipment, back office systems are monitored 24/7. All equipment is fully tested before site installation, and fully tested for a number of weeks, information is processed and tested prior to any operation going live.

 Euro Car Parks do not need to provide evidence of who was driving the vehicle, it is the registered keeper’s responsibility to inform of the full name and UK Serviceable address within 28 days beginning with the day after the notice was given. If the full amount remains unpaid, under Schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’), Euro Car Parks have the right subject of the Act to recover from the keeper of the vehicle at the time it was parked so much of that amount which remains unpaid.
Euro Car Parks had reviewed MR DRIVER’s appeal on an individual basis however the vehicle was parked in breach of the terms and conditions. Signage onsite clearly advises there are restrictions in place and therefore any vehicle parked in breach of the stated terms will be issued with a £100 Parking Charge Notice. It is the driver’s responsibility to ensure signage had been read and not to assume.
The signage onsite is clear warning that a notice would be issued for failure to adhere to the terms and conditions in place. The signage in place clearly advises a £100 parking charge notice would be issued; therefore the notice has been issued correctly and should remain payable.

They have attached two figures (1) corresponding to the time of entering and leaving the premises. HOWEVER, THE PICTURE 1 DOES NOT CORRESPOND WITH MY CAR.

7. Signage location plan and images of signage onsite

They have included a number of photos of the site indicating the location of the signage.

 

Posted by: cabbyman Thu, 13 Sep 2018 - 18:06
Post #1416355

EDIT ALL names, VRNs, PCN numbers from your post! There is far too much identifying information there.

Have a look around completed cases to see if you can find a Gladstones loss. That may give you ammunition to rebut their comments about the NtK being 'legal.'

Make the two different cars a BIG point in your rebuttal.

Others will no doubt come up with some more points.

Posted by: Macapaca Fri, 14 Sep 2018 - 08:49
Post #1416487

They appear to have shot themselves in the foot by showing the wrong car. Make that your first and clear point. For the rest of their evidence it would be good to challenge everything they say otherwise it could be read by POPLA that you don't disagree. But note that you can't use new evidence.

For POFA non-compliance and signage etc now is the time to be clearer in fewer words why you disagree. Cut straight to the reasons and don't be tempted to lose your point in just repeating what POFA says. Explain concisely why their advice from Gladstones is wrong.

Posted by: nosferatu1001 Sun, 16 Sep 2018 - 10:32
Post #1416949

Bullet points of how the are not pofa com0liant
Bullet point simply stating the operator hasn't supplied evidence of your COLOUR vehicle VRM xyz but clearly wrongcolour vehicle with vrm abc.

Posted by: Alexander86 Tue, 18 Sep 2018 - 20:51
Post #1417851

Dear all,

Thank you very much for your continued support.

I need some help with commenting on the non POFA compliance. I keep reading the NtK issued by ECP but I can’t clearly see why is not POFA compliant.

Please find below NkT and my appeal to POPLA explaining why is not compliant (according to cabbyman’s case).

They did not issued a PCN on the widescreen but they served a Notice to Keeper. However, I can’t see why the wording is wrong.
I can challenge the paragraph 9.2.i, since the NtK does not provide a date of “sent or given”, but a “date issued” instead.

Thank you in advance
Kind regards,

Appeal to POPLA

1) No keeper Liability - The Notice to Keeper is not compliant with the POFA 2012, no 'Notice to Driver' was served whilst the car was stationary.

Although Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

I set out below the requirements for a 'Notice to Driver' as set out in Schedule 4 which clearly requires either:

- Under paras 7 & 8: a windscreen PCN (in person, issued on the car before it leaves the site) followed by a postal 'Notice to Keeper' served no sooner than 29 days later,

OR

- Under paragraph 9: a compliant postal 'Notice to Keeper' to be served within 14 days of the event.

Neither of these two mandatory routes were followed in this case. Paragraph 7 states:

7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.

(4)The notice must be given—

(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and

(b)while the vehicle is stationary,

by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.


No such Notice to Driver was served. Instead, a hybrid document the operator called a 'PCN' was posted. This neither matched the mandatory requirements of paragraph 7 as a 'Notice to Driver' (because it was posted, not served whilst the vehicle was stationary) nor does it meet the strict requirements of paragraph 9 if it was intended to be a 'Notice to Keeper' (NTK).

The non-compliant wording of this NTK is fatal for 'keeper liability'.

In terms of wording:

- Contrary to the requirements of Paragraph 9(2)(b), the Notice to Keeper did not inform the keeper that: ''the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full''. BOTH the above prescribed requirements must be stated in the NTK and they were not.

- Contrary to the requirements of Paragraph 9(2)(e), the Notice to Keeper did not state that: ''the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper: ... to pay the unpaid parking charges; or ... if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver''

- The NTK fails in the prescribed requirement - in exact words and with the correct deadline - to: ''warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and ...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid''

- Contrary to the requirements of Paragraph 9(2)(i) the Notice to Keeper does not specify the date on which the notice is sent (where it is sent by post) or given (in any other case). A date of preparing or batching of NTKs ready for mailing later by iMail is often stated by BPA AOS members, misleadingly, as a 'date of issue' or similar. This fails the requirement to state the date SENT or GIVEN, neither of which are defined as the date the document was drawn up by back office staff, several days before they actually put the NTK in the post via Royal Mail.

[deleted] Consequently, ECP has forfeited its right to recover any unpaid parking charges from the keeper of the vehicle.

If ECP should try to suggest that there is any method outwith the prescribed statute (POFA 2012) whereby a registered keeper can be held liable for a charge where a driver is not identified, I would remind them of the words of Mr Henry Greenslade, the 2015 POPLA Chief Adjudicator who ensured consistency of decisions since 2012, whereby POPLA never found against a registered keeper where a clearly non-POFA Notice to Keeper was served, as in this case.

The Lead Adjudicator reminded operators (and his team of Assessors, in their training) of the following facts about a keeper's right not to name the driver and, of course, still not be lawfully able to be held liable, under Schedule 4:

www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle: 4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or

(b)has given a notice to keeper in accordance with paragraph 9.

The operator has failed to meet the second condition for keeper liability due to the multiple flaws in the NTK and the lack of any windscreen NTD or PCN served whilst the vehicle was stationary. Therefore, no lawful right exists to claim unpaid parking charges from myself as keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. This too was confirmed by Mr Greenslade, POPLA Lead Adjudicator. in page 8 of the 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.


 

Posted by: TheFonz12 Fri, 25 Jan 2019 - 11:46
Post #1455267

Dear Alexander86,
you didn't notify if you eventually won the case or if you had to pay the Parking Charge...

Posted by: TheFonz12 Fri, 1 Feb 2019 - 09:34
Post #1457807

Sorry wrong post, please ignore.

Posted by: TheFonz12 Mon, 18 Mar 2019 - 09:08
Post #1471814

Do they need to specify the colour of the vehicle to be POFA compliant in the NTK?

Posted by: Jlc Mon, 18 Mar 2019 - 09:28
Post #1471822

QUOTE (TheFonz12 @ Mon, 18 Mar 2019 - 09:08) *
Do they need to specify the colour of the vehicle to be POFA compliant in the NTK?

Nope.

Posted by: TheFonz12 Thu, 21 Mar 2019 - 11:49
Post #1472736

Hi all, I sent my comment back to POPLA and I'm waiting for their assessment.
Do you know how long usually do I need to wait to receive their decision?
Is that going to be the final decision?
Regards

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